27 March 2006

Hamdan Oral Arguments Tomorrow

On Tuesday, March 28, 2006 at 11:00 A.M. Eastern Standard Time, the United States Supreme Court will hear oral arguments in the case of Hamdan v. Rumsfield. It is arguably the most important case on the docket. It concerns the power of the President to establish, without statutory authority, a system that holds enemy combatants indefinitely without recourse to the judicial branch, and to similarly try them for alleged crimes in military tribunals that are little more than kangaroo courts.

More than three dozen briefs have been filed on Hamdan's side, largely arguing that the military tribunals established by the White House to try the detainees are illegal. By contrast, only a handful of briefs have been filed on the other side, backing the administration's expansive view of executive authority. . . .

The covers also carry the names of the big-ticket New York, Washington, D.C., and other national law firms that are bringing their muscle to bear, from Cravath, Swaine & Moore to Covington & Burling to Akin Gump Strauss Hauer & Feld to Jones Day.

"The blue-chip firms are all in this case, and it's the senior partners who are involved very often," said David Remes, the Covington partner who coordinated the amicus curiae effort for Hamdan. "This is not a tousle-haired, wild-eyed group of lawyers."

Adds New York University Law School professor Burt Neuborne, who also filed a brief for Hamdan: "This is not noblesse oblige by the big firms. It is an extraordinary no-confidence vote by the establishment bar in what the administration is trying to do here."

Neuborne said the only recent parallel was the effort 50 years ago by New York firms to help desegregate public schools.

As one of those partners explained:

It sounds clichéd, but it's true; this case is about the rule of law. This is a power play by the administration to escape meaningful judicial review.

A tape recording of oral arguments will be released promptly after the arguments are held. They will give us the first real clue concerning the posture that the Supreme Court will take towards the case. Chief Justice Roberts will not participate as he was involved in the case prior to his appointment to the U.S. Supreme Court, where he ruled against Hamdan.

Scalia has been asked by one of the amicus brief groups to recuse himself from the case because he made comments suggesting that he had already made up his mind and was biased by the fact that his son serves in Iraq right now, prior to oral arguments.